Lighting up: Marijuana law questions linger

BY LEVI PULKKINEN, SEATTLEPI.COM STAFF

Updated 11:46 am, Thursday, December 6, 2012

Photo: LINDSEY WASSON

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Professor Gizmo, 50, lights up as he waits for I-502 to take effect at the Space Needle on Wednesday, December 5, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect until today. An ounce of marijuana is now legal for adults over 21 in Washington. less

Professor Gizmo, 50, lights up as he waits for I-502 to take effect at the Space Needle on Wednesday, December 5, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect ... more

Photo: LINDSEY WASSON

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One marijuana enthusiast blows smoke at his friend's face at the Space Needle on Thursday, December 6, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect until today. An ounce of marijuana is now legal for adults over 21 in Washington. less

One marijuana enthusiast blows smoke at his friend's face at the Space Needle on Thursday, December 6, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect until today. ... more

Photo: LINDSEY WASSON

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Gary Parrish smokes marijuana in a glass pipe, Thursday, Dec. 6, 2012, just after midnight at the Space Needle in Seattle. Possession of marijuana became legal in Washington state at midnight, and several hundred people gathered at the Space Needle to smoke and celebrate the occasion, even though the new law does prohibit public use of marijuana. less

Gary Parrish smokes marijuana in a glass pipe, Thursday, Dec. 6, 2012, just after midnight at the Space Needle in Seattle. Possession of marijuana became legal in Washington state at midnight, and several ... more

Photo: AP

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From left, Andre Edwards, G.E. Montoya, and J. Smiley pass around a glass pipe as they smoke marijuana, Thursday, Dec. 6, 2012, just after midnight at the Space Needle in Seattle. Possession of marijuana became legal in Washington state at midnight, and several hundred people gathered at the Space Needle to smoke and celebrate the occasion, even though the new law does prohibit public use of marijuana. less

From left, Andre Edwards, G.E. Montoya, and J. Smiley pass around a glass pipe as they smoke marijuana, Thursday, Dec. 6, 2012, just after midnight at the Space Needle in Seattle. Possession of marijuana became ... more

Photo: AP

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Robyn Bowen prepares to smoke just a few minutes before I-502 takes effect at the Space Needle on Thursday, December 6, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect until today. An ounce of marijuana is now legal for adults over 21 in Washington. less

Robyn Bowen prepares to smoke just a few minutes before I-502 takes effect at the Space Needle on Thursday, December 6, 2012. Washington State voters approved I-502 on November 6, but the law did not go into ... more

Photo: LINDSEY WASSON

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David DesRoaches, left, and Michael Hodges, right, pose for a friend's photo as they smoke marijuana, Thursday, Dec. 6, 2012, just after midnight at the Space Needle in Seattle. Possession of marijuana became legal in Washington state at midnight, and several hundred people gathered at the Space Needle to smoke and celebrate the occasion, even though the new law does prohibit public use of marijuana. less

David DesRoaches, left, and Michael Hodges, right, pose for a friend's photo as they smoke marijuana, Thursday, Dec. 6, 2012, just after midnight at the Space Needle in Seattle. Possession of marijuana became ... more

Photo: AP

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A crowd of media and marijuana enthusiasts gather at the base of Space Needle on Thursday, December 6, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect until today. An ounce of marijuana is now legal for adults over 21 in Washington. less

A crowd of media and marijuana enthusiasts gather at the base of Space Needle on Thursday, December 6, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect until ... more

Photo: LINDSEY WASSON

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Austin N.-B. smokes from a small bong a few minutes before midnight at the Space Needle on Wednesday, December 5, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect until today. An ounce of marijuana is now legal for adults over 21 in Washington. less

Austin N.-B. smokes from a small bong a few minutes before midnight at the Space Needle on Wednesday, December 5, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect ... more

Photo: LINDSEY WASSON

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Medical marijuana patient Kyler Whitaker of Seattle lets out a puff of smoke as he waits for the clock to strike 12 at the Space Needle on Wednesday, December 5, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect until today. An ounce of marijuana is now legal for adults over 21 in Washington. less

Medical marijuana patient Kyler Whitaker of Seattle lets out a puff of smoke as he waits for the clock to strike 12 at the Space Needle on Wednesday, December 5, 2012. Washington State voters approved I-502 on ... more

Photo: LINDSEY WASSON

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A man lights a joint a few minutes after the official legalization of marijuana in Washington at the Space Needle on Thursday, December 6, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect until today. An ounce of marijuana is now legal for adults over 21 in Washington. less

A man lights a joint a few minutes after the official legalization of marijuana in Washington at the Space Needle on Thursday, December 6, 2012. Washington State voters approved I-502 on November 6, but the law ... more

Photo: LINDSEY WASSON

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C. Nash smokes marijuana, Thursday, Dec. 6, 2012, just after midnight at the Space Needle in Seattle. Possession of marijuana became legal in Washington state at midnight, and several hundred people gathered at the Space Needle to smoke and celebrate the occasion, even though the new law does prohibit public use of marijuana. less

C. Nash smokes marijuana, Thursday, Dec. 6, 2012, just after midnight at the Space Needle in Seattle. Possession of marijuana became legal in Washington state at midnight, and several hundred people gathered at ... more

Photo: AP

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Russ Belville of Portland, Ore. attempts to set up a livestream at the Space Needle before marijuana is legalized on Wednesday, December 5, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect until today. An ounce of marijuana is now legal for adults over 21 in Washington. less

Russ Belville of Portland, Ore. attempts to set up a livestream at the Space Needle before marijuana is legalized on Wednesday, December 5, 2012. Washington State voters approved I-502 on November 6, but the ... more

Photo: LINDSEY WASSON

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Joe Riley, left, smiles as his boyfriend T.J. Underwood, right, blows marijuana smoke into his face at the Space Needle on Thursday, December 6, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect until today. An ounce of marijuana is now legal for adults over 21 in Washington. less

Joe Riley, left, smiles as his boyfriend T.J. Underwood, right, blows marijuana smoke into his face at the Space Needle on Thursday, December 6, 2012. Washington State voters approved I-502 on November 6, but ... more

Photo: LINDSEY WASSON

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Marijuana enthusiasts celebrate as the crowd counts down to 12:00 a.m. at the Space Needle on Thursday, December 6, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect until today. An ounce of marijuana is now legal for adults over 21 in Washington. less

Marijuana enthusiasts celebrate as the crowd counts down to 12:00 a.m. at the Space Needle on Thursday, December 6, 2012. Washington State voters approved I-502 on November 6, but the law did not go into ... more

Photo: LINDSEY WASSON

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A man lights up at the Space Needle on Thursday, December 6, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect until today. An ounce of marijuana is now legal for adults over 21 in Washington. less

A man lights up at the Space Needle on Thursday, December 6, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect until today. An ounce of marijuana is now legal for ... more

Photo: LINDSEY WASSON

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Spencer W. takes a drag at the Space Needle on Thursday, December 6, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect until today. An ounce of marijuana is now legal for adults over 21 in Washington. less

Spencer W. takes a drag at the Space Needle on Thursday, December 6, 2012. Washington State voters approved I-502 on November 6, but the law did not go into effect until today. An ounce of marijuana is now ... more

Photo: LINDSEY WASSON

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Can I still be filed from my job if pot is legalized and I smoke it?

Can I still be filed from my job if pot is legalized and I smoke it?

Photo: Josh Trujillo/seattlepi.com File

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Yes. If your employer wants to drug test you and you fail, you can be canned – whether it’s medical marijuana or not. Staff at the King County Law Library point to a 2011 state Supreme Court ruling that doesn’t prevent employers from firing medical marijuana users because of a positive drug test. less

Yes. If your employer wants to drug test you and you fail, you can be canned – whether it’s medical marijuana or not. Staff at the King County Law Library point to a 2011 state Supreme Court ruling that ... more

Photo: Josh Trujillo/seattlepi.com File

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Do the feds still prohibit marijuana? What happens if they object?

Do the feds still prohibit marijuana? What happens if they object?

Photo: Joe Dyer/seattlepi.com File

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The short answer: Yes, and it’s complicated. Seattlepi.com reporter Levi Pulkkinen covered this in a Nov. 7 story, and U.S. Attorney’s Office spokeswoman Emily Langlie noted the Justice Department will continue to enforce the Uniform Controlled Substances Act, which prohibits marijuana use. King County Prosecutor Dan Satterberg said he expects the Department of Justice will file a lawsuit and that it may go to the Supreme Court regarding whether a state can have a law that’s inconsistent with the federal Uniform Controlled Substances Act. less

Pretty much. City Attorney Pete Holmes has a policy of not filing charges for simple marijuana possession, and in 2003, Seattle voters passed an initiative making the investigation, arrest and prosecution of marijuana offenses the lowest law enforcement priority when the drug was intended for adult personal use. The combination of those explains why some people walk on downtown streets with a lit joint and aren’t worried, and that's also why there were no arrests for pot at Hempfest this year. less

Pretty much. City Attorney Pete Holmes has a policy of not filing charges for simple marijuana possession, and in 2003, Seattle voters passed an initiative making the investigation, arrest and prosecution of ... more

Photo: Joe Dyer/seattlepi.com File

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No way. Are marijuana arrests in Seattle really that rare?

No way. Are marijuana arrests in Seattle really that rare?

Photo: Josh Trujillo/seattlepi.com File

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In the first four months of 2011 about 6,500 incident reports were filed with the City Attorney’s Office. Marijuana was the reason for the contact in only six of those incidents, according to the mayor’s office. Only .09% of incident reports during this time period cite marijuana as the primary reason for a contact. Don’t believe this? Go walk around the Pike/Pine corridor. There’s plenty of weed – and more serious problems. less

In the first four months of 2011 about 6,500 incident reports were filed with the City Attorney’s Office. Marijuana was the reason for the contact in only six of those incidents, according to the mayor’s ... more

Photo: Josh Trujillo/seattlepi.com File

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How much medical marijuana can someone legally have? Will that change?

How much medical marijuana can someone legally have? Will that change?

Photo: Josh Trujillo/seattlepi.com File

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The state allows for a 60-day supply, which is defined in Washington Administrative Code as 24 ounces and 15 plants. That won’t change after Initiative 502. The law also states a patient may exceed these limits if he or she can provide medical needs, and King County Prosecutor Dan Satterberg has said prosecution will not be brought against someone who more than 15 marijuana plants but can show their own medical need for them. The 60-day supply regulation took effect Nov. 1, 2008. less

The state allows for a 60-day supply, which is defined in Washington Administrative Code as 24 ounces and 15 plants. That won’t change after Initiative 502. The law also states a patient may exceed these ... more

Photo: Josh Trujillo/seattlepi.com File

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Can I grow my own weed?

Can I grow my own weed?

Photo: Getty Images

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No, unless you’re an authorized medical marijuana user.

No, unless you’re an authorized medical marijuana user.

Photo: Getty Images

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What about driving? Can cops take my blood without consent?

What about driving? Can cops take my blood without consent?

Photo: Joe Dyer/seattlepi.com File

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If cops think you’re driving under the influence they can get a blood test without your consent. That’s the case for marijuana, alcohol, prescription drugs, or others. In fall 2009, the state Supreme Court decided it was legal for officers to get a search warrant and force blood draws from people suspected of drunken driving. “Neither due process nor equitable estoppel requires police officers to inform DUI suspects of the possibility of obtaining a warrant to collect evidence,” Justice Susan Owens wrote for the majority. less

If cops think you’re driving under the influence they can get a blood test without your consent. That’s the case for marijuana, alcohol, prescription drugs, or others. In fall 2009, the state Supreme Court ... more

Photo: Joe Dyer/seattlepi.com File

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When can retail outlets sell marijuana in Washington?

When can retail outlets sell marijuana in Washington?

Photo: Joe Dyer/seattlepi.com File

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The ACLU answered this in a question list about I-502: According to the initiative, “the Washington State Liquor Control Board, Department of Agriculture, and Department of Health will have until December 6, 2013 to complete rulemaking that will create a system to license and regulate the production, processing, and sale of marijuana. Commercial businesses can be set up after rulemaking is complete and once a license is obtained.” less

The ACLU answered this in a question list about I-502: According to the initiative, “the Washington State Liquor Control Board, Department of Agriculture, and Department of Health will have until December 6, ... more

Photo: Joe Dyer/seattlepi.com File

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What’s the requirement for where stores will be?

What’s the requirement for where stores will be?

Photo: Joe Dyer/seattlepi.com File

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The initiative allows for stand-alone marijuana businesses to be licensed with similar restrictions to the old state liquor stores and strip clubs. That means they’ll have to be at least 1,000 feet away from schools and parks. The number of marijuana store licenses will also be determined in rulemaking, according to the ACLU, which also addressed this question in their own I-502 FAQ. less

The initiative allows for stand-alone marijuana businesses to be licensed with similar restrictions to the old state liquor stores and strip clubs. That means they’ll have to be at least 1,000 feet away from ... more

Photo: Joe Dyer/seattlepi.com File

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How much will it cost?

How much will it cost?

Photo: Sofia Jaramillo/seattlepi.com File

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The specific retail prices haven’t been set. If you think the tax on booze is tough, don’t expect a break with pot.

The specific retail prices haven’t been set. If you think the tax on booze is tough, don’t expect a break with pot.

Photo: Sofia Jaramillo/seattlepi.com File

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So what is the real issue with what’s next for legal pot?

So what is the real issue with what’s next for legal pot?

Photo: Josh Trujillo/seattlepi.com File

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The Department of Justice’s response. The initiative says that as of Dec. 6, adults in Washington age 21 and older can’t be arrested under state law for possessing limited amounts of marijuana. The DOJ’s discretion is the question, which goes back to the earlier question and what Satterberg said about the state’s rights question likely to be challenged in court. It’ll likely take months for this all to be worked out. less

The Department of Justice’s response. The initiative says that as of Dec. 6, adults in Washington age 21 and older can’t be arrested under state law for possessing limited amounts of marijuana. The DOJ’s ... more

Photo: Josh Trujillo/seattlepi.com File

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Lighting up: Marijuana law questions linger

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Midnight marked the end of Washington’s decades-long prohibition on marijuana possession, prompting celebratory tokes at the Space Needle early Thursday morning and Seattle police to issue a droll statement that officers will look the other way.

Voters approved marijuana decriminalization through Initiative 502 by a 12-point margin on Nov. 6. But, despite the efforts of the serious-minded supporters who crafted the law, what happens next remains something of a mystery.

And, hanging over it all, federal authorities still won’t say whether they’ll play ball as state leaders in Olympia attempt to put in place the truly revolutionary piece of I-502 – a state system which licenses growers and dealers while taxing the heck out of pot.

“We’re in uncharted water here,” Seattle City Attorney Pete Holmes said at a press conference Wednesday morning.

“We’ve struggled with prohibition for a century,” Holmes continued. “It’s going to take some time to substitute a state licensed and regulated system.”

First, the easy piece.

As of 12:01 a.m. Thursday, possession of an ounce or less of marijuana by people 21 and older will no longer be illegal under Washington law. Public smoking is still banned, and pot won't get a pass on the anti-smoking rules for bars and restaurants.

But the murkiness of the law has prompted the Seattle Police Department to order its 1,300 officers to take no enforcement action on public marijuana users. That means anyone caught smoking pot in public will get a verbal warning from cops.

Trickier will be a portion of the initiative enabling the state to regulate and tax marijuana, which the state Liquor Control Board is expected to do by December 2013.

Marijuana could then be sold to customers over 21. Restrictions written into the initiative would prevent pot retailers from opening near places where children congregate, block advertising on public transit and provide recourse for local governments unhappy with Liquor Control Board licensing decisions.

The initiative’s sponsors contend it does not run afoul of federal drug law – it impacts only state activities, they contend, and would not require state agents to do anything illegal. Medical marijuana is readily available in Washington and several other states despite it being disallowed under federal law. Backers of the initiative hope the same kind of unofficial truce will allow the state to regulate and tax marijuana distribution in Washington.

In a statement, U.S. Attorney for Western Washington Jenny Durkan reiterated that Congress has placed marijuana in the same category of drugs as heroin, and ordered that it be policed as such. Durkan suggested that only Congress can remove that mandate.

“Regardless of any changes in state law, including the change that will go into effect on December 6th in Washington State, growing, selling or possessing any amount of marijuana remains illegal under federal law,” Durkan said in a statement. She went on to remind the public not to bring marijuana onto federal property, including national parks and forests.

Federal authorities have stopped short of threatening to take any specific action. Holmes described their posture as “studied silence.”

Speaking Wednesday, Alison Holcomb, the American Civil Liberties Union of Washington drug policy director who spearheaded the legalization effort, said the ultimate goal is to square federal law with federal action in the field. And that, she agreed, will take action by Congress.

But Holcomb suggested minor changes in federal drug law could go a long way to ameliorate the concerns of Washington voters who supported I-502. Congress need only order that law enforcement action fall in line with state law with regard to marijuana.

More broadly, Roger Rothman, a professor emeritus at the University of Washington’s School of Social Work, said he hopes the change in law will allow for greater education about the dangers of marijuana.

“We have not done well with safely and healthily living with marijuana,” Rothaman said at the ACLU press conference Wednesday.

Describing the drug as “not harmless,” Rothman, who spent his career researching marijuana dependence, said the public is very poorly informed about the threats the drug can pose. He suggested those wishing to educate themselves review “Safety First: A Reality-Based Approach to Teens and Drugs” or othermaterials provided by the National Institute on Drug Abuse.

While the threat of legal action looms, state law enforcement will enter uncharted territory.

Smoking marijuana in public will remain illegal – those caught doing so could be ticketed, and face penalties similar to a traffic ticket. Speaking Wednesday, Holmes said it was too early to say exactly what qualifies as “in public” – a smoking area outside a bar would be a gray area – but that a basic guideline is not to smoke marijuana in view of a public space.

The initiative also mandates that anyone caught driving with a specific level of active THC in their blood – 5 nanograms per milliliter – is presumed to be driving under the influence. THC is the chemical in marijuana that makes users high; proponents compare the rule to the .08 blood alcohol concentration limit set for drunk driving.

Driving stoned was already illegal, but the “per se” limit put in place by I-502 gives police a clear measure that’s easier to prove in court. Impaired driving specialists will still be called on to check drivers suspected of driving stoned, and law enforcement agencies are working to incorporate the blood testing into their work.

“With respect to impaired driving, we hope you’ve all heard our mantra by now: We’ve always arrested impaired drivers regardless of the drug involved,” State Patrol spokesman Bob Calkins said in a statement. “It has always been a crime to drive while impaired by drugs whether they be illegal, legal or even medically prescribed. This new law does not change how troopers will determine impairment at the side of the road.”

The blood tests take days or weeks to deliver results, Calkins said, making them “an issue for prosecutors and defense attorneys,” not troopers.

The referendum also does nothing to impede employers from drug testing workers – the federal Department of Transportation has already warned commercial drivers, train conductors and pilots that a positive drug test for marijuana will leave them parked and grounded.

University students living on campus will not be permitted to possess marijuana. While most wouldn’t be allowed to anyway – I-502 decriminalized marijuana for those 21 and over – universities are concerned that giving the green light to marijuana on campus violates federal rules about drugs in schools.

Holmes warned that his office will prosecute “unfortunate flaunting” of marijuana in public places. Basically, he said the city’s near total tolerance of minor marijuana crimes doesn’t extend to intentional public smoking.

Holmes also acknowledged that marijuana reform remains a work in progress, and suggested patience.

“We’ve struggled with prohibition for a century,” Holmes said. “It’s going to take some time to substitute a state licensed and regulated system.”

CORRECTION: Due to a reporter's error, this article incorrectly described the manner in which cocaine and methamphetamine are catagorized under federal law.